Judicial independence in Central America: problems and proposals

Transcription

1 Judicial independence in Central America: prblems and prpsals Even after several decades f judicial refrms and internatinal assistance fr judiciaries, judicial independence, transparency, and mre in general, the quality f the administratin f justice in Central America still leave much t be desired. A variety f initiatives have been undertaken, and a lt f mney has been invested withut tangible results. This indicates that it is necessary t think ut f the bx as regards appraches t imprve judicial independence in Central America. This dcument cntains DPLF s reflectins n prblems regarding judicial independence in Central America, and prpsals n hw t imprve this situatin. On the basis f DPLF s research, experience and cntacts with judges, civil sciety rganizatins and ther experts in this field, the main prblems can be summarized as fllws: v Central American judiciaries are prly evaluated by the general public, as well as by subject matter experts (as a frthcming DPLF publicatin n judicial independence and transparency in Central America can attest t). The bad reputatin f the judiciary is rted in recent histry: crruptin scandals, the meddling f plitical and ecnmic actrs with judges and the vertly plitical appintments f judges wh mrever ften lack the necessary expertise have led t a serius decline f respect fr the judiciary. v A wrrying side- effect f this phenmenn is that there is a lack f capacity amng Central American judges. Because the institutin is nt held in high regard, typically nly thse nt hired by law firms r enterprises, apply t the judiciary. This is even the case fr Supreme Curt judges. Since the quality f a judicial system depends greatly n its human resurces (i.e. its judges), this is a significant prblem. v Interference by external actrs remains a prblem, but this is dne in a mre subtle r sphisticated way than in decades past. One way in which plitical actrs cntinue t cntrl the judiciary is by means f the appintment f high- level justices. The prcedures allw fr appintments based n plitical cnsideratins rather than n the merits f the candidates. This has far- reaching cnsequences in the case f appintments t the Supreme Curt; in many cases, the best jurists f a cuntry decline t submit themselves t farcical prcesses that can damage a successful career. Since the SCJ tends t have imprtant administrative pwers (tuched upn belw), the lack f quality and independence in the Supreme Curt has cnsiderable impact n the entire judiciary. A similar situatin applies t the appintments f lwer judges (by the Supreme Curt r the Judicial Cuncil): a lack f prcedures and nrms allw fr arbitrary appintment decisins, which results in that the better candidates decline t submit themselves t these types f prcesses.

2 v There are als fundamental flaws in the institutinal design f Central American judiciaries. One f these is the cncentratin f (administrative) pwers (such as prmtins, salaries, and the disciplinary system) in the Supreme Curt. Such far- reaching pwers, cmbined with a lack f transparency and clear criteria in these prcesses (mentined belw), lend themselves t undue interferences with the autnmy f lwer judges. If t this, the plitically mtivated appintment f Supreme Curt justices, addressed abve, is added, we can cnclude that there is an undesirable plitical influence in the judiciary. As a result, these plitical justices can effectively cntrl the judiciary tp- dwn and can thus vie fr the prtectin f ecnmic r plitical interests f their patrns. v Anther fundamental flaw is the lack f transparency and the lack f an effective access t infrmatin abut the judiciary s functining and its utput. As a result, accuntability and public scrutiny are difficult. This allws fr the cntinuatin f mismanagement and subpar perfrmance withut any cnsequences smething that further reinfrces the negative perceptin the citizenry has f the judiciary. v This situatin is exacerbated by the absence f effective cmmunicatin plicies in the judiciary: the institutin des nt prvide reliable infrmatin abut its functining r abut relevant decisins. The lack f a media ffice r spkespeple make that media utlets tend t aggressively pursue judges t get a qute abut a case, might spread (sensatinalist) misinfrmatin abut these cases (and allw fr parallel judgments in the media), and thus increase (undue) pressure n the judges, which cmprmises judicial independence and feeds the distrust f the judiciary. v Anther verarching prblem is the large gap between nrms and practice in the regin. This is due, in part, t legislative negligence that leads t imprtant lacunas and ambiguus criteria in the laws, which allw fr arbitrary decisins. Cncepts like being f recgnized standing t be selected fr a judicial pst, applying a criterin like as required by judicial service fr the transfer f judges and inexcusable fault fr the applicatin f sanctins almst seem made t be abused. Their cntents shuld be clearly clarified and specified. v At the same time, many laws d nt establish mechanisms that allw fr an effective enfrcement f the nrms cntained in them. Examples that impact n judicial independence are the lack f independent rgans that receive (and investigate) judges allegatins f undue interference with their wrk, a lack f entities that implement effective evaluatins f judges and judicial persnnel, the absence f bdies that receive and investigate peridic asset declaratins f judicial persnnel, and the lack f mechanisms fr the impartial assignment f cases t judges. v In a number f cuntries, anther reasn fr the gap between nrms and practice resides in the plitical system and the absence f a culture f legality. In sme cuntries, there is a blatant

3 disregard fr existing nrms that limit thse in pwer. These nrms tend t be ignred (Panama, El Salvadr, Guatemala), r are changed n a case by case basis (Hnduras, Nicaragua) t accmmdate the interests f plitical pwers. If this issue is nt addressed, it is dubtful whether nrmative refrms will have any practical impact. Recmmendatins In rder t change this situatin and strengthen the Central American judiciaries, actin is required n several frnts: Selectin and appintment prcesses fr high- level judges. These prcesses need t be transparent and based n a fact- based evaluatin f the merits f the candidates. Given the nature f the main prblems the prevalence f plitical cntrl it seems advisable that these selectins be cnducted by autnmus rgans. Furthermre, it is essential that prir t the selectin prcess, a candidates prfile is drafted and that the entity in charge f the selectin prcess publicizes hw candidates will be evaluated. Transparency thrughut this prcess is essential. Lifetime appintments f judges (r autmatic renewal f their mandates, unless a qualified majrity f Cngress vtes against it) shuld be cnsidered. The prfessinalizatin f the judiciary by means f the existence f an effective judicial career is essential. Slid selectin and evaluatin prcesses are essential fr the success f this system: Selectin prcesses f lwer judges need t be merit- based. The prfile needs t be made clear, as well as hw these qualities need t be evaluated. The Dminican Republic has an interesting practice f such entry exams. It is essential that a gd evaluatin prcess f judges be designed s as t cntrl the quality and efficiency f the judiciary. Currently, n such prcesses exist in Central America. These evaluatins need t be administered by an autnmus bdy (instead f the judges superir) and there need t be an instance f revisin and appeal. Lifetime appintments f judges shuld be cnsidered. Disciplinary prceedings need t be imprved. Clearer nrms (abut punishable behavir) need t be drafted, and due prcess needs t be respected in these prceedings (fr instance, the right t a defense, transparency and the right t appeal at a different, independent bdy). In rder t cmbat internal interference in the judiciary, mechanisms need t be established that allw fr judges t denunce undue interferences with their wrk. N cuntry in Central America has a system that allws fr the randm distributin f cases. This means that cases can be assigned t certain judges, which pens the drs t undue interferences. Such a distributin system needs t be installed in the entire judicial system f each cuntry.

4 There need t be clearer nrms regarding cnflicts f interests and what t d when such cases arise. Effective mechanisms t recuse judges need t be installed, as well as the pssibility t appeal these decisins. An effective plicy f peridically rendering infrmatin abut the assets f judicial fficials needs t be adpted. An autnmus ffice with the pwer (and budget) t investigate these declaratins shuld be set up. Cmmunicatin plicies need t be designed. A press ffice needs t be established and made respnsible fr the administratin f infrmatin abut the judiciary. The existence f press judges (wh can respnd t media inquiries, rather than the judge wh is handling the case) is a practice whse adptin shuld be evaluated. Judges wh are making an effrt t imprve judicial independence, transparency and accuntability shuld be supprted. The rle f assciatins f judges in bringing abut fundamental changes in the judiciary shuld be recgnized and encuraged. Knwledge- sharing between judges (assciatins) is essential, and can prvide imprtant encuragement t thse struggling t be heard in their cuntry. A sustained, large- scale effrt shuld be made in the media and by means f the educatin system t apprpriately infrm citizens abut hw the justice system wrks and what their rights are. Shrt- term recmmendatins In all f Central America v Increase the rle that the UN and the IACHR play in addressing these issues with member states, fr example by means f the reginal OHCHR ffice, r the Special Prcedures f the Human Rights Cuncil (such as the UN Rapprteur fr the Independence f Judges and Lawyers). As regards the IACHR, the Cmmissin itself and the Rapprteurship n human rights defenders and judicial peratrs. v Supprt rganizatins, bth thse wrking lcally and internatinally, wh are addressing judicial independence issues in the regin. v Prmte the invlvement f actrs like universities in this debate, and imprve the curriculum f law students t include curses n human rights, cnstitutinal law, and access t justice.

5 v Supprt a training prgram fr jurnalists n judicial independence issues, t stimulate better quality reprting n issues related t the justice system. Shrt- term cuntry- specific recmmendatins Guatemala Ø In the first mnths f 2014, a selectin prcess fr the Guatemalan Supreme Curt will be held. The entire curt will be renewed, s this prcess will have an imprtant impact n the administratin f justice in the cuntry in the cming years. Althugh the mechanism f the Cmisión de Pstulación has led t smewhat better results than in ther cuntries in the regin, the pliticizatin f these prcesses is a cnsiderable prblem. It is essential that this prcess be transparent, which will allw fr candidates t be scrutinized. Internatinal mnitring and pressure is essential t achieve this. Ø Supprt lifetime appintments f judges (by means f a legal refrm). El Salvadr Ø The past few years have seen a number f cnfrntatins between the Supreme Curt and the plitical establishment, mst ntably regarding the appintment f high- level fficials (SCJ justices, magistrates f the Crte de Cuentas (Cmptrller) and the Electral Tribunal, as well as the Minister f Defense and the Directr f the Natinal Plice). It is essential fr the stability f the cuntry that a better, mre transparent and merit- based prcedure fr these appintment prcesses be adpted. Supprt fr such nrmative changes is key. Csta Rica Ø Supprt the adptin f clearer criteria fr the evaluatin f judges. Ø Establish a mechanism t denunce undue interferences with the independence f judges. Nicaragua Ø Supprt the appintment f new Supreme Curt justices fr thse whse mandate has expired (currently the vast majrity) by means f transparent, merit- based, participatry prcesses. Ø Establish a mechanism t denunce undue interferences with the independence f judges. Hnduras

6 Ø Supprt the establishment a slid, transparent and merit- based mechanism fr the selectin f Supreme Curt judges. The next selectin will take place in 2015, but because f the highly alarming state f the Hnduran judiciary and the discuraging precedent f the selectin prcess fr the attrney general in 2013, this issue shuld be addressed with sufficient anticipatin t the selectin prcess. Ø Supprt the revisin f the Law n the Judicial Cuncil and the Judicial Career, s as t include clearer rules regarding disciplinary prcesses, transfers f judges and the appintment prcesses f lwer judges, amngst ther issues. Cnsider prviding technical supprt fr this. Panama Ø Call fr the implementatin f the Pact de Estad pr la Justicia, an agreement between the branches f gvernment and civil sciety t imprve the administratin f justice in the cuntry. Ø Supprt the creatin f transparent, merit- based mechanisms fr the selectin f judges (such as established in the Pact de Estad pr la Justicia). Ø Call fr the discussin f the Law n the Judicial Career in Cngress apprved in first debate but drmant fr the 5+ years since. This law wuld prvide imprtant stability in tenure fr judges and imprve their autnmy frm their superirs.